Bonnie Kraham: If both parents die, who will care for kids?

Thursday

Sep 13, 2012 at 2:00 AM

Passing on inheritances is not the only purpose of an elder law estate plan.

Bonnie Kraham

Passing on inheritances is not the only purpose of an elder law estate plan.

Many people delay doing such planning because they think there is plenty of time. Others believe they do not have sufficient assets to warrant planning or have no particular wishes regarding their possessions.

But inheritances are just a part of the planning. For one thing, all families with minor children, regardless of their net worth, need to have a plan in place to designate alternate caregivers for their children in the event of death.

Naming an appropriate guardian is one of the most important preparatory steps that parents can take to ensure their child's well-being, no matter what the future holds. If the parents do not make their wishes known in appropriate legal documents, then the decision is left to the court.

While the court will work to make the best decision with the available information, there is obviously no replacement for a parent's choice.

A will is the planning document that designates the guardian for minor children. Although trusts are often preferred to keep matters private, one still needs a will to appoint the children's guardian.

As a recent high-profile case demonstrates, sometimes parents disagree on the best people to designate as alternate caregivers. In early May, rapper Adam Yauch died at age 47 after a bout with cancer. Fortunately, the Beastie Boys' founding member had taken steps ahead of time to create a trust and a will. The provisions of the trust are private, so the family was able to keep those details out of the public eye. However, the will was made public when filed with the New York City Surrogate's Court.

A strange detail of the will was the terms of the guardianship in the event that both Adam and his wife passed away. Interestingly, it hinged on whether the singer died in an even- or odd-numbered year. If he died in an even-numbered year, then his parents would be guardians with his wife's parents used as backups. If he died in an odd-numbered year then the opposite would be true.

The alternate-year plan was likely the result of a compromise. The couple was probably split on whom to designate, and this arrangement was reached during the planning process to accommodate both parties. Working with those who understand the common pitfalls opens the door to unique agreements that best meet the needs of the family.

Bonnie Kraham is an attorney practicing elder law estate planning with Ettinger Law Firm, 75 Crystal Run Road, Town of Wallkill. She can be reached at 692-8700, ext. 119 or at bkraham@trustlaw.com. This column is intended to provide general information, not legal advice.